Rebuff for Bush on Terror Trials in
a Senate Test

KATE ZERNIKE / New York Times
15sep2006

WASHINGTON, Sept. 14 — The Senate Armed Services Committee defied President
Bush on Thursday, with four Republicans joining Democrats in approving a plan
for the trial and interrogation of terrorism suspects that the White House has
rejected as unacceptable.

The Republican rebellion was led by Senator John W. Warner of Virginia, the
committee chairman, with backing from Senators John McCain of Arizona, Lindsey
Graham of South Carolina and Susan Collins of Maine.

The White House had said their legislation would leave the United States no
option but to shut down a C.I.A. program to interrogate high-level terrorism
suspects.

The vote came on a frantic day of Republican infighting and despite an
all-out effort by the White House to win support for its own approach, which
provides far fewer protections for detainees.

Mr. Bush traveled to Capitol Hill with Vice President Dick Cheney on Thursday
morning. The administration also released a brief letter in which the top
lawyers for the military branches said they found no legal objection to the
White House proposal to redefine a key provision of the Geneva Conventions.

But Colin L. Powell, Mr. Bush’s former secretary of state, sided with the
senators, saying in a letter that the president’s plan to redefine the Geneva
Conventions would encourage the world to “doubt the moral basis of our fight
against terrorism,” and “put our own troops at risk.”

Mr. Powell’s statement amounted to a rare public breach with the White
House he served, but reflected his strong opposition while in office to the
administration’s assertions, beginning shortly after the Sept. 11 attacks,
that the war against Al Qaeda should not be bound by the Geneva Conventions.

The White House made clear that it would fight on despite the Republican
rebellion, with Mr. Bush saying he would “resist any bill’’ that did not
provide a legal basis for the C.I.A. to continue to employ what he has called
“alternative interrogation practices’’ for terrorism suspects.

The main dispute between the White House and the Senate Republicans revolves
around a provision known as Common Article 3, which prohibits inhumane treatment
of combatants seized in wartime. Gen. Michael V. Hayden, the C.I.A. director,
has argued that the article’s prohibition against “outrages upon personal
dignity” must be clarified so that troops and C.I.A. personnel know what is
permissible in the interrogation of terrorism suspects.

But Senators Warner, McCain and Graham say the Bush proposal would send a
signal that the United States has abandoned its commitment to human rights, and
invite other nations to reinterpret the Geneva Conventions as they see fit,
eliminating protections for American troops seized in future conflicts.

The senators also dismissed the letter from the military lawyers, saying they
had questions about whether it amounted to an authentic endorsement of the White
House proposal. They said they put more weight on extensive public testimony in
which the lawyers raised doubts about the Bush plan.

Some military officials briefed on the military lawyers’ position also
disputed the notion that the lawyers had reversed course. They said the lawyers
agreed to sign a letter at a meeting on Wednesday after discussing the language
over several hours.

The lawyers would agree only to say that they could not find anything illegal
about the specific issue of amending Common Article 3, the defense officials
said, but still do not endorse several points in the administration’s
approach.

The senators say their bill will protect the C.I.A. by refining the war
crimes act, which criminalizes violations of Common Article 3, to specifically
enumerate what violations constitute war crimes.

“What General Hayden wants us to do is immunize him not from liability but
from criticism,” Mr. McCain said after the vote, “because if one of his
techniques is made public and he gets criticized, then he can say, ‘Well,
Congress told me to do it.’ He’s trying to protect his reputation at the
risk of America’s reputation.”

The other chief dispute concerns the evidence admitted at trial. The Bush
plan would allow hearsay and evidence obtained by coercion if it is considered
reliable, while the Senate proposal would exclude any testimony obtained by “cruel
inhuman, or degrading treatment.”

The White House would bar the suspect from seeing classified evidence shown
to the jury weighing his case; the senators say that this amounts to a secret
trial, and that the suspect must be allowed to see anything the jury sees. They
offered a compromise under which a judge would substitute a declassified summary
of the evidence.

The committee vote was 15 to 9, with all Democrats joining the four
Republicans. The measure now goes to the Senate floor, where Senators Warner,
Graham and McCain believe they have a majority made up of Democrats and as many
as a half-dozen other Republicans.

Senator Carl Levin of Michigan, the senior Democrat on the Armed Services
Committee, warned the administration against taking on Mr. McCain, a former
prisoner of war.

“They’re trying to reinterpret the Geneva Conventions,’’ Mr. Levin
said, “but the best expert on that is somebody who has very personal
experience with those who violate Geneva, and that’s Senator McCain.”

The situation in the House is very different, with that chamber on track to
approve the measure backed by the White House.

“We’ll do what the president wants,” said Representative Duncan Hunter
of California, the Republican who is chairman of the House Armed Services
Committee.

The White House and Republicans on either side of the issue maneuvered
furiously for advantage all day.

As the Senate Armed Services Committee met to vote on its alternative to the
president’s legislation, an anonymous Republican invoked a Senate rule to stop
it from meeting, forcing Mr. Warner to go to the Senate floor to ask that the
hold be lifted. He then praised the Democrats for being “totally cooperative”
on the issue, a pointed rebuke to members of his own party who have been pushing
the White House view. And he prevailed upon Senator Bill Frist of Tennessee, the
Republican leader, to persuade the senator calling for the hold to lift it.

The White House must now decide whether to press its allies in the Senate to
amend the bill on the floor, or to step back and wait until the bill passes and
the House and Senate work out differences in conference.

The bill may face amendment in any case. Some Democrats object to a provision
that would block detainees from challenging their detention in court. More than
two dozen retired federal judges sent a letter to Congress arguing that such a
provision would lead to unlawful permanent detention, and defy Supreme Court
precedent.